Why Direct Democracy is The Best Protection for Abortion RightsRoundup
tags: abortion, democracy
Rachel Rebouché is the interim dean and a professor of law at Temple University’s Beasley School of Law.
Mary Ziegler is a professor of law at the University of California, Davis. She is the author of Abortion and the Law in America: Roe v. Wade to the Present and Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.
The news for abortion rights in Tuesday’s midterm election was stunning. In five states—California, Kentucky, Montana, Michigan, and Vermont—voters went to the polls and either rejected an anti-abortion measure or added abortion rights to their state constitution. Just months earlier, Kansas, a conservative state with a history of intense anti-abortion activism, shocked the country by voting to protect state abortion rights by a significant margin.
The lesson here goes beyond the unpopularity of many abortion restrictions. With the reversal of Roe v. Wade, people have looked primarily to political parties to defend abortion rights (or undo them)—and have come to expect outcomes that break cleanly along partisan lines. The results of these latest ballot measures suggest that we’ve underestimated the abortion-rights protections that direct democracy—not party politics—can produce. The fact is that disentangling questions about abortion from political affiliation may provide one of the best ways to protect or to restore abortion access in red and purple states, at least in the short run.
Lessons on how and why can be gleaned from an effort that took place an ocean away: Ireland’s 2018 campaign to repeal the Eighth Amendment, which had, since 1983, recognized fetal rights and thus banned abortion. In subsequent years, the country was repeatedly chastised by the European Court of Human Rights for violating the human rights of women, but it was able to resist many demands for change by insisting that the country had democratically established its strong consensus in favor of fetal rights. In reality, support for legal abortion grew over the years, fueled, in part, by outrage over the death of Savita Halappanavar, a woman who died of sepsis after being refused an abortion following an incomplete miscarriage.
At the risk of oversimplifying the comparison, in certain respects our post-Roe country already resembles Ireland under the Eighth Amendment. Travel to procure abortions was common among Irish women—prior to 2018, as many as 3,000 traveled to Britain each year to end a pregnancy. Others took abortion medication, even though Irish law made doing so a crime.
Parallels in the arguments made to voters are worth noting, too. The campaign to repeal the Eighth Amendment relied on personal stories about real people and stressed that “you don’t necessarily need to be pro-abortion to be pro-choice.” In Kansas, abortion-rights supporters tailored their messages to reach voters with a range of views, including those who were deeply religious or politically conservative and opposed to abortion on principle. Campaign messages reached those who, at some level, believe that people might have good reasons to end pregnancies. Just as Irish voters recoiled at the real-world effects of the Eighth Amendment, accounts of people denied emergency care when they have incomplete miscarriages, like Halappanavar, have already shaken many Americans.